Barondes on Frisks for Legally Possessed Firearms

Wednesday, August 22, 2018

 

The recognition in Heller of an individual right to bear arms has required courts to grapple with the interaction between exercise of this right in public and Terry stops. Core questions are (i) whether reasonable suspicion a person is armed is by itself sufficient to initiate a Terry stop and (ii), if so, whether such a stop inherently authorizes an accompanying frisk. The former issue is examined in a separate forthcoming article, Royce de R. Barondes, Conditioning Exercise of Firearms Rights on Unlimited Terry Stops, __ Idaho L. Rev. __ (forthcoming). This article focuses on the second issue. Most fundamentally, insofar as the stop is authorized because it is supposed the stop is a mere inconvenience, it is inconsistent then to conclude that the stop inherently authorizes the pointing of a firearm at the subject. And if a subject is treated as armed and dangerous—the criterion for authorizing the frisk—courts typically hold the subject can be frisked with weapons drawn. More broadly, by sketching the number of Terry stops that would be added by stops of persons, not police officers, who carry firearms daily, we can easily conclude that there would be a substantial increase in the most hazardous Terry stops. In light of the controversy generated by the level of Terry stops in the recent past, a substantial benefit would be required in any balancing that found the increase in stops to be reasonable. Yet prior Supreme Court authority in fact indicates the benefits of which a court may take cognizance are limited to the possession and transport itself, and exclude remote consequences prevented by the stops.

http://lawprofessors.typepad.com/crimprof_blog/2018/08/barondes-on-frisks-for-legally-possessed-firearms.html

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Barondes on Frisks for Legally Possessed Firearms curated from CrimProf Blog